This paper focuses on the Supreme Court’s 1982 decision in Santosky v. Kramer and argues that the Santosky Court’s imposition of a clear and convincing burden of proof in termination of parental rights cases is a threat to children’s rights. Specifically, I argue that the opinion suffers from empirical flaws in reasoning (such as the Court’s improper understanding of how the burden of proof affects likelihood of error); these flaws combine to justify the Court’s faulty presumption against termination of parental rights. In addition, I argue that the Court’s underlying philosophy regarding children undermines any recognition of rights unique to children. Subsequent sections of the paper criticize the various calls for the expansion of Santosky’s holding by further heightening the burden of proof on the government or by applying the Santosky burden in other family law adjudications. The paper instead points to auspicious decisions in various state courts that provide groundwork for the articulation of children’s rights in the context of parental rights termination.
Date of Authorship for this Version
Mandel, Rebecca C., "The Evidence Is "Clear and Convincing": Santosky v. Kramer Is Harmful to Children." (2006). Harvard Law School Student Scholarship Series. Paper 11.